Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02971/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 14 June 2016
On 01 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

gitaben morarbhai patel
(no anonymity order)
Appellant
and

entry clearance officer, mumbai
Respondent

Representation:

For the Appellant: Ms A Bhachu, instructed by Bassi Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. On 12 January 2015, First-tier Tribunal Judge Lambert granted the appellant permission to appeal to the Upper Tribunal against the decision of First-tier Tribunal Judge Graham that was promulgated on 31 October 2015. Judge Graham had dismissed the appellant's appeal against the Entry Clearance Officer's decision of 24 January 2014 refusing to grant entry clearance to the appellant as an adult dependent relative.
2. Although various grounds of appeal were submitted, Judge Lambert limited permission to one issue, whether Judge Graham was correct to exclude post decision evidence in light of DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038? Ms Bhachu was not aware that the grant of permission was limited as she had not been provided with a copy when she was instructed. She prepared a skeleton argument on all issues but after seeing a copy of the grant relied solely on the issues in relation to that permitted by the grant. It is unfortunate that this happened since it was clear to me that she had put much time and effort into prepare the case as if all issues were live and it is a reflection of her professionalism that she adapted her course immediately.
3. The principles in DR (Morocco) are well known and do not need to be rehearsed. The appellant complains that at paragraph 21 of her decision and reasons statement Judge Graham discounted medical evidence merely because it post-dated the date of decision. The grounds as originally settled argue that the judge should have inferred from the medical letters written in February 2014 what the situation had been in January 2014. The letters did not make reference to new medical issues but recorded the appellant's pre-existing conditions. Although other medical letters were only issued after March 2014, they too reflected the appellant's long term medical conditions.
4. Ms Bhachu pointed me to three documents that were available to Judge Graham that made specific reference to the appellant's medical condition prior to the date of decision. Judge Graham referred to only one of these at paragraph 21. The other two documents were to be found at pages 52 and 123 of the appellant's bundle. Mr Mills conceded these documents were available to Judge Graham.
5. Mr Mills responded to the general submission by suggesting that even if Judge Graham had admitted the medical evidence it would not have been enough to satisfy the adult dependent relative requirements because there was nothing to show that suitable care provision was unavailable in India. The medical evidence showed that the appellant had difficulty walking and that she needed help with domiciliary matters. Even if all the medical evidence had been admitted, Judge Graham could only have found that the requirements of paragraphs 33 to 37 of appendix FM-SE were not met.
6. In reply Ms Bhachu pointed me to the affidavit of Ms Rupa Parekh, a paralegal working for the instructing solicitors, regarding the unavailability of care for the appellant in India. She also pointed to the letter at page 48B of the appellant's supplementary bundle which indicated that the appellant required the support of her close family and was from a medical practitioner.
7. Having considered all the arguments, I have reached the following conclusions.
8. I have concerns regarding the way Judge Graham has expressed her findings in paragraph 21 of her decision and reasons statement. In the first part of that paragraph she identifies she had one document which related to the appellant's condition prior to the date when entry clearance was refused. It is evident from the appeal bundles that there were in fact three documents that described the appellant's medical condition as it was before and at the date of refusal of entry clearance. Failure to consider relevant evidence is an error of law.
9. In the second part of paragraph 21 Judge Graham refers to the other medical evidence and it would appear she intended only to exclude that evidence which post-dated the refusal decision. The way this is expressed suggests that she was excluding the bulk of the medical evidence simply because it had not been available to the respondent. Because of the way it is expressed, this amounts also to an error of law.
10. The third part of paragraph 21, comprising the last five lines, is somewhat different in nature. In that part Judge Graham identifies that she has no evidence to show that the requirements of appendix FM relating to adult dependent relatives had been met. Although that finding might be considered suspect given the first two parts of paragraph 21, even if all the medical evidence had been admitted and considered, Judge Graham could only have come to the same conclusion.
11. The medical evidence as a whole fails to show that it is more likely than not that the appellant's condition was such as to meet the stringent test in paragraph E-ECDR.2.4 of appendix FM, bearing in mind the specified evidence requirements of appendix FM-SE. The evidence shows the appellant has received medical treatment for a range of issues but at no juncture does any medically qualified person or other suitable person indicate that the appellant "as a result of age, illness or disability requires long term personal care to perform everyday tasks."
12. The nearest any document comes to doing so is the certificate from Rajarkar Orthopaedic Hospital which indicated that the appellant needed "an attendant round the clock to take care of her daily (c)hores." But this was issued following the appellant's fall in August 2012 and related to her recovery from a fracture of her left femur. There is nothing to indicate this was not limited to the period of recovery and the further certificate from the same hospital issued in February 2014 suggests that the appellant had regained significant mobility because there is no longer any reference to her needing round the clock attendance.
13. The only other document that refers to the appellant's need for care is the document at page 48B. It does not specify that the appellant needed the care of her close relatives because of her inability to perform everyday tasks. In fact it refers only to needing moral support and therefore is not evidence to suggest the appellant needed help performing everyday tasks.
14. The fact that the judge made legal errors weakens her decision and reasons statement. However, because the evidence failed to meet the requirements of the immigration rules, there is no reason to set the decision aside and remake it. The only possible outcome, taking the evidence at its highest, is that which Judge Graham stated at the end of paragraph 21.
15. Of course, the other grounds initially pursued are not open to the appellant as permission was not granted on them. Therefore, the failure of the appellant to persuade me that the errors are material to the outcome means that I must dismiss her appeal to the Upper Tribunal.
16. Before concluding this decision, however, I should comment on one other matter. Even if the evidence were sufficient to satisfy paragraph E-ECDR.2.4 of appendix FM, there remains no evidence that care is not available to the appellant. The affidavit from the paralegal, however well-meaning, cannot comply with paragraph 35 of appendix FM-SE which provides an exhaustive list of sources of such evidence.
17. For all these reasons, I find although there is legal error in the decision and reasons statement, they are not such as to require the decision to be set aside.

Decision
Although there are legal errors in the decision and reasons statement of Judge Graham, they are not such as to require the decision to be set aside and therefore her decision is upheld.

Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal